Criminal Justice

Confessions of an Ex-Prosecutor

Culture and law conspire to make prosecutors hostile to constitutional rights.


'Law and Order'
'Law and Order: SVU' / NBC

Twenty-one years ago, the day O.J. Simpson was acquitted, I began my career as a federal prosecutor. I was 26—a young 26 at that—on the cusp of extraordinary power over the lives of my fellow citizens. After years of internships with federal and state prosecutors, I knew to expect camaraderie and sense of mission. I didn't expect it to influence how I thought about constitutional rights. But it did.

Three types of culture—the culture of the prosecutor's office, American popular culture, and the culture created by the modern legal norms of criminal justice—shaped how I saw the rights of the people I prosecuted. If you had asked me, I would have said that it was my job to protect constitutional rights and strike only what the Supreme Court once called "hard blows, not foul ones." But in my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome to win a conviction. Nobody taught me that explicitly—nobody had to.   

When I left the U.S. Attorney's office after more than five years, my disenchantment with the criminal justice system had begun to set in. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. I'm a defense-side true believer—the very sort of true believer that used to annoy me as a young prosecutor.

Once again, nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly. I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion—and even paranoia—from the wrong end. I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.

I even learned it by watching prosecutors commit misconduct—the deliberate or reckless infringement of defendants' constitutional rights. I saw prosecutors make ridiculous and bad-faith arguments defending law enforcement, and prevail on them. I saw them make preposterous assertions about the constitution because they could, and because judges would indulge them. I saw them reject my claims that my clients' rights were violated because they were the government and my client was the defendant and that was their job.        

My criminal defense colleagues who were never prosecutors themselves often assume that prosecutorial misconduct is rife because prosecution attracts authoritarian personality types. Although it is surely true that some are natural bad actors, my experience showed me that prosecutors are strongly influenced to disregard and minimize rights by the culture that surrounds them. Disciplining or firing miscreants may be necessary, but it's not enough: It doesn't address the root causes of fearful culture and bad incentives.

A Fearful Office Culture That Doesn't Encourage Introspection About Wrongdoing

The camaraderie I enjoyed at the U.S. Attorney's Office was the strongest and most rewarding that I've experienced in my life. Prosecutors learn the system together, acquire trial skills together, and face notorious defense attorneys and difficult judges together. They regale each other with stories of victory and defeat, of justice and injustice. They rely on each other to navigate impossible trial schedules or bounce back from errors. They are in this thing together.

This makes for a strong team. But it doesn't encourage introspection about wrongdoing. When a defense attorney asserts that a prosecutor violated a defendant's rights, that attorney is attacking your brother or sister, your comrade in arms, the person you know and trust. It's easier to believe that the accusation is merely tactical—a gambit to evade punishment for crime—than it is to believe your friend may have done wrong.

That tendency to dismiss claims of misconduct is encouraged by the frequency of genuinely bogus complaints. I was accused of prosecutorial misconduct twice, and it was nonsense both times.

Once a lawyer accused me of adding new bank robbery charges against his client in retaliation for his motion to suppress. In fact, I added the charges because a new fingerprint match came back after I got the case, and I was still enthusiastic enough to think that it mattered whether I convicted the guy of four robberies or five.

Another time a famous Kennedy assassination conspiracy theorist accused me of being part of a shadowy conspiracy with an airline to persecute his client, who was charged with interfering with a flight crew. I knew I'd done no such thing.

As a result, it became easy—natural—to view allegations of misconduct as something that defense attorneys cynically pursue for tactical advantage. In that frame of mind, prosecutors aren't inclined to scrutinize legitimate complaints too closely.

Prosecutions Driven by Shared Fear

Just as the brotherhood of prosecutors was premised on shared experience, it was also premised on shared fear. As a defense attorney, I fear that I'll fail my client and they will be unjustly imprisoned. But as a prosecutor, the culture taught me to fear that I'd make a mistake and a guilty defendant would go free to wreak havoc on society. That fear constantly colored my assessment of legal issues.

I remember being taught this fear 20 years ago, early in my time as a prosecutor. I was assigned to prosecute a rather pathetic bank robber. The man had been fired from his job and evicted from his apartment, and he went to the bank to withdraw the proceeds of a recent insurance settlement following a motorcycle crash. The teller told him that there was still a hold on his insurance check. The man lost control right then and there, told the teller he had a bomb, and demanded the contents of the cash drawer. Leaving his driver's license at the counter, he carried the few thousand dollars (far less than the balance of his account) to his car, drove to his former home, and waited in the parking lot to be arrested.

I rather timidly questioned my supervisor. Should this man face the weight of federal criminal prosecution? Aren't his circumstances unique, and unlikely to recur? Shouldn't we find another approach?

My supervisor—a decent, moral man—pointed me to the defendant's criminal record of drunk driving. If we let him go, he reasoned, do you want him out on the road with your young wife? What if he causes a crash and someone is killed because we were lenient?

So I took the case to trial, and the jury—functioning in an idealized way, as they sometimes do—hung 11 to 1 for acquittal. But I learned my lesson: As a prosecutor, I was responsible for what may happen if I failed to convict these people. The fate of their future possible victims are on me.

That camaraderie—that fear—colored my evaluation each time I assessed whether an action would violate a defendant's rights. The office culture helped make me.

American Culture Treats Prosecutors as Heroes

In October 1967, The Andy Griffith Show ran an episode in which Opie secretly recorded an accused bank robber in the town jail talking to his lawyer, and urged his father to take the tape as evidence. Sheriff Taylor erased the tape and admonished his son. "You bugged the conversation between a lawyer and his client. Now that's violating one of the most sacred rights of privacy." Andy Griffith played the scene firmly, like a wise TV dad and upstanding lawman. "Whether a man is guilty or innocent, we have to find that out by due process of law."

Griffith was the father we all wanted and the police officer we happily believed we had. In 1967, in the waning years of the Warren Court, that sentiment was still popular and plausible on a mainstream television show.

The mood changed quickly. Assassinations, race riots, a bloody Democratic convention, and law-and-order campaign rhetoric helped frame constitutional rights as impediments to justice rather than an essential element of it. Politicians like Richard Nixon helped convince America that the lawlessness they saw on TV was the consequence of the constitutional rights recognized and protected by the Warren Court.

By 1971, an equally classic scene about rights looked utterly different. In the movie Dirty Harry, an outraged district attorney harangues Clint Eastwood, playing title character, Inspector Harry Callahan, over his unlawful search of a crazed killer: "Does Escobedo ring a bell? Miranda? I mean, you must have heard of the Fourth Amendment!"

"Well I'm all broken up about that man's rights," counters Callahan, voicing the emerging sentiment. When Callahan is told that his illegal search means the gun is inadmissible at trial, he snaps, "Well then the law's crazy."

Eastwood plays the hero in this scene; the district attorney is played as a weak, appeasing bureaucrat and a judge as a doddering, detached academic. Just four years after the Andy Griffith episode, respect for rights is portrayed as ignoble.     

Today, American culture remains much more Dirty Harry than Sheriff Taylor. When Americans think about criminal defendants' constitutional rights, they might consider the Bill of Rights in the abstract, but they're more powerfully moved by decades of Dick Wolf's Law & Order series and its spinoffs and imitators. Those programs occasionally show a bad cop or a rogue prosecutor or an innocent man railroaded by a dirty prosecution. But those are the exceptions. The overwhelming cultural message from American entertainment is that constitutional rights are barriers to justice—tactically erected impediments that the forces of law and order must overcome to reach resolution in 42 minutes.

Real prosecutors watch TV, too. They work in the nation that portrays their duties that way. And they enjoy the benefits. One of the first things they told us as rookie prosecutors was that we couldn't use our credentials to get special treatment: No flashing that seal to get into a restaurant or out of a parking ticket. They had to tell us that because it worked—because the culture teaches the public to admire and trust prosecutors.

That phenomenon pursues me 15 years into my career as a defense attorney—and, in a way, it even helps me.

Like most defense attorneys with my background, I market myself to potential clients as a "former federal prosecutor." I don't do that to signal loyalty to my old office or as a show of admiration for it. I do it because it's good business. It doesn't only signal that I know how the office works and have lingering connections there. Thanks to the culture, it makes potential clients charged with crimes trust me more.

Even as Americans are facing the ruination of their lives at the hands of prosecutors, even when they're innocent, even when they're being mistreated by the government, they're still skeptical of defense lawyers and trusting of prosecutors. They prefer to hire a former federal prosecutor because they don't want to think of themselves as someone who has to hire a criminal defense lawyer.

That's the power of culture. American culture relentlessly tells prosecutors that they are by definition the good guys. It tells them that assertions of rights are, at best, impediments to be overcome, and at worst cynical ploys by villains. It is tremendously difficult to ignore those cultural messages and give defendants' constitutional rights the attention they deserve.

Prosecutors Are Duty-Bound to Argue That Rights Don't Matter

Should prosecutors be able to resist office culture and American culture to uphold their oaths to defend the constitution? Yes. But there's an insidious third influence on them—the very law we want them to uphold.

American criminal procedure, as developed during the four-decade retreat from the Warren Court's recognition of defendants' rights, encourages prosecutors to argue that rights are irrelevant. The argument goes by genteel names like "harmless error" and "lack of prejudice" and "immaterial," and it is omnipresent in modern criminal procedure. As a prosecutor, it was my job on dozens of occasions to invoke those doctrines to assert that even if defendants' rights were violated, those violations didn't matter.

Take search warrants, for example. Under most circumstances, the Fourth Amendment requires police to get a warrant before they make forcible entry to your home search it. May police officers lie to a magistrate to get that warrant, or deliberately omit information that contradicts the evidence they offer? No, says the Supreme Court—that would violate your rights. But the violation only has a remedy if the lie is material—that is, if the warrant application, stripped of the lie or supplemented with the deceitfully omitted information, would no longer be enough to support probable cause. If you identify a lie that's immaterial, you're not even entitled to a hearing on whether it's a lie in the first place.

So when a defendant discovers that law enforcement agents have lied to get a warrant, a prosecutor has every incentive to argue that the lie didn't matter, that the evidence was strong enough without it to get the warrant. The prosecutor will be making this argument in the context of a search that did turn up incriminating evidence (the defendant wouldn't be making the argument if it didn't), which tends to bias judges towards upholding searches. After all, the judge thinks—wasn't the cop's suspicion proved right? Moreover, probable cause—the proof necessary to support a warrant—is a very relaxed and inherently subjective standard, requiring only a "fair probability" that evidence will be found. The practical effect is that law enforcement can lie in warrant applications with relative impunity, and it's a prosecutorial duty to think of ways to explain how those lies are irrelevant.

On the other hand, prosecutors are encouraged to think differently about lies by mere civilians. If federal agents lie about you to a magistrate to get a search warrant, the question is whether the lie did actually make a difference. But if you lie to federal agents, the standard is far less forgiving. The materiality of a false statement to the federal government is measured by whether it is the sort of statement that could hypothetically have influenced the government's decision-making, not whether it actually did. Thus prosecutors are trained to treat defendants' wrongdoing harshly and government wrongdoing leniently.

Nearly every type of law enforcement misconduct presents a prosecutorial opportunity—an obligation—to argue that the misconduct doesn't matter.

For instance, everyone knows that prosecutors are obligated to turn over exculpatory evidence. But when they don't, a defendant is only entitled to relief when the failure is prejudicial—that is, when there is a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Prosecutors are therefore encouraged to view exculpatory evidence not as something that should be turned over categorically, but as something that should be turned over if the prosecutor thinks it will be important.

Sometimes that approach is even reduced to writing. In 2012 the American Civil Liberties Union sued the Los Angeles County District Attorney's Office over its "Special Directive 10-06," which encouraged Deputy District Attorneys to make their own assessment of whether exculpatory evidence was "material" and withhold it if they thought it wasn't. The Directive even categorically excused prosecutors from turning over some evidence—for instance, by maintaining that evidence of police misconduct need not be disclosed if it was still under investigation.

This dismissive attitude towards rights continues on appeal. When prosecutors engage in misconduct, courts ask whether or not it was harmless—that is, whether "it is more probable than not that the prosecutor's conduct materially affected the fairness of the trial." Once again, the prosecutor's job encourages them to argue that their misconduct and the misconduct of their colleagues didn't matter, didn't make a difference, didn't change the outcome.

The same approach colors prosecutors' approach to defense attorneys. Criminal defense attorneys are supposed to vindicate their clients' rights. But fighting for a client's constitutional rights takes time and energy and meticulous attention. Lucky defendants can pay for attorneys who can devote that time and energy. Most defendants aren't that lucky. They have to rely on a system of overburdened and underfunded indigent defense that cannot possibly exercise the level of vigilance necessary to police the police in every client's case.

So they miss things. If an appellate lawyer discovers a violation of rights that the trial lawyer missed, he or she must argue that the constitutional error was plain—that is, that the error so affected the "fairness, integrity, or public reputation of judicial proceedings" that a "miscarriage of justice" would result unless the conviction is overturned. Prosecutors, on the other hand, must defend their convictions by arguing that any particular violation of rights wasn't "plain," that it didn't impact the fairness or integrity of the proceedings. In other words, they're duty-bound to argue that the violation of rights, if it occurred, didn't matter.

Of course, a defendant can challenge a conviction on the grounds that his or her attorney was ineffective in failing to recognize and challenge a violation of constitutional rights. That's common in habeas corpus motions. But showing ineffective assistance of counsel doesn't just require a demonstration that a lawyer's efforts fell below professional standards. A defendant must also show that the failure caused prejudice—that is, that it was "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." So once again, a prosecutor responding to an ineffective assistance of counsel challenge to a conviction must assert that the unredressed violation of rights just didn't matter.

Lawyers shape arguments, and arguments inevitably shape lawyers. A persistent professional obligation to argue that violations of constitutional rights don't matter can't help but influence how prosecutors look at rights, and treat them.

So instead of serving as the rules of the game, the underlying assumptions about how a case should proceed, rights become something to be managed and minimized. They become merely rhetorical, figures of speech rather than principles.

As a young prosecutor I found myself analyzing each constitutional question not in terms of whether the defendant's rights were respected, but in terms of how I could show it was irrelevant that they weren't. I didn't make up that approach out of a black heart. I learned it from the legal culture.  

Legal Culture Can Change

Culture has deep roots, but it can change.

There's been a recent surge of attention paid to prosecutorial misconduct. Alex Kozinski, a maverick judge on the United States Court of Appeals for the Ninth Circuit, has sparked a judicial and academic movement to scrutinize prosecutors and impose previously rare consequences for their violations of defendants' rights. Judge Kozinksi and others like him have refused to accept the status quo of broad deference to prosecutors as the way the American criminal justice system ought to work. Some prosecutors—usually in progressive enclaves—have begun to talk openly about reforming their offices and taking methodical steps to respect defendants' rights. The America media, never before a reliable ally of defense attorneys, has begun to cover prosecutorial misconduct with the sort of tenacity it requires.

I'm glad that more prosecutors are facing serious consequences for violating the rights of defendants. I'm happy when jurists like Judge Kozinski names and shames them in the public record, just as I would have been resentful and defensive twenty years ago. I'm happy to see the media view prosecutors as an institution requiring scrutiny rather than as a source for tips and quotes. These are positive developments.

But prosecutorial misconduct is a problem that won't get better because a few judges or a few reporters talk about it. It will require effort. It will require principled prosecutorial supervisors to set an example and frame constitutional rights as the rules, not the obstacles. It will require American citizens to take civil rights seriously—to frame our views of them based on the constitution and not based on a popular culture that scorns them. It may even require us to reevaluate how our legal system treats violations of rights, and develop a doctrine more sophisticated than "no harm no foul." Culture permitted America to develop the notions of personal liberty and the rule of law in the first place. Culture redeemed can protect those notions again.      

NEXT: A.M. Links: Britain Votes on Exiting E.U., Gary Johnson Makes His Pitch, House Democrats Stage Pro-Gun Control 'Sit In'

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  1. Why Prosecutors Appear So Hostile to Constitutional Rights

    Because they are. Duh!

    1. Yup. All this handwaving about how they don’t really mean it is a pile of crap.

      You are what you do when it counts.

      When it counts, they shit all over due process.

    2. WTF
      “Why Prosecutors Appear So Hostile to Constitutional Rights.”

      But, but they have to be hostile because everyone knows that too many guilty people get off on technicalities and the system is imbalanced in the defendant’s favor. Sarc off.

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    5. sometimes its pretty easy to tell who doesnt bother reading the article before jumping into the comments section.

  2. Because they’re power hungry assholes?

    1. …because if they want to be a District Attorney (and then a congress critter, or even a governor), they have to get convictions. Hence, the most important thing to their career advancement is putting people in jail, by hook or by crook.

    2. Too true….

  3. I still think part of the way to fix this is to make the public defenders come out of the district attorneys office.

    Today, you are a prosecutor in case A. Tomorrow, defense attorney for case B.

    1. Wouldn’t that just further reduce the effectiveness of the public defenders by infecting them with the “guilty until proven guilty” mentality?

      1. Possibly.

        Or it could cause them to realize that lives are being ruined when the prosecutor plays fast and loose with the rules. And maybe, as prosecutor, knowing you may be partnered on a case next week with the defense attorney, you think thru your acts.

        See what White said about the teamwork aspect that develops. Maybe it develops in a healthy way if the same pool of attorneys are both prosecutors and defenders.

        1. That, or prosecutors and public defenders collude on cases. My conviction this week, yours next.

    2. I’d rather see private criminal defense attorneys donate their time for X number of cases per year in exchange for student loan forgiveness or other incentives. Public defenders offices, IMO, represent a massive conflict of interest.

    3. Or at least pay the public defenders and prosecutors similarly.

    4. I agree with UCS on this one. The incentives are such that they’d almost certainly bring their A game to prosecution, and slide on defense.

      1. The incentives are however you structure them. Lawyers are competitive people. If the public defender and the prosecutor were, for example, drawn randomly from the same pool of lawyers, and a certain amount of money was allotted to pay the lawyers in the case, with all or most of the money going to the winning lawyer, I think we would see fairer trials.

        1. That would increase the incentive to bury exculpatory evidence as a prosecutor.

          1. Sure – it really, really incentivizes winning. However, prosecutors are already routinely bury exculpatory evidence, although more out of laziness. Public defenders have no real incentive to win. They have no real incentive to expose prosecutorial misconduct. These are lawyers after all. If the prosecutor essentially defrauded the defense you really think they’d sit there and do nothing?

    5. Maybe, rather view as part of professional developmehnt, you can’t be an prosecuting attorney until you have a residency (2 years?) as a Public Defender. Start with defending individuals before being entrusted with defending ‘society’.

      1. So the public defenders are all inexperienced new lawyers and the prosecutors are all experienced veterans?

        1. Wouldn’t be any different from now.

      2. That merely tells lawyers that the career path transitions to prosecutor and remains there (premain!), so their defense years better not rock the boat by defeating the prosecutors they hope to work with just two years later.

    6. I would prefer if prosecutorial malfeasance meant that they had to serve the same amount of time as the people they were trying to convict. Hey, get busted withholding exculpatory evidence on a death penalty case? The accused gets to walk, the prosecutor gets the needle for trying to kill an innocent person.

      Maybe that might teach prosecutors a bit of compassion.

      1. Who’s responsible for prosecuting prosecutorial misconduct, and are they subject to the same penalty if they botch?

        1. Slap the handcuffs on them as soon as as the case as appealed. It’s a fucked up situation when prosecutors can deliberately lie, destroy innocent people’s lives, send people off to death row, and when busted, the worst punishment they face is disbarmenent.

          Let’s at least try to raise those stakes.

          1. the worst punishment they face is disbarmenent.

            In fairness, it really sucks getting 86’d.

            1. Disbarment….yeah, getting your license to steal revoked and losing membership in the club must really hurt. Am I sick for taking such glee in it. I think Shakespeare should have been a little more forceful with something like…..kill all the lawyers….with a fucking wood chipper. And feet first should go without saying. Alright. In the name of compassion; hand first if they were sincerely remorseful.

        2. How about making Public Defender’s Office responsible for prosecuting prosecutorial and police misconduct?

          1. Very good idea. Let them have an investigative staff and be able to bring cases in front of the grand jury, and be able to request warrants and subpoenas.

            Their needs to be a separate office, department or branch of government charged with and only having the power to prosecute government officials, officers and employees but not the private citizen.

      2. Agreed. Perjury, which I define as “authoritative obstruction” to include any lies in official capacity, should be punished as if maximally guilty of whatever they were trying to falsify. Lie about a death penalty case? You get the needle. Liw about a burglary with a 5-20 year term? You get 20 years, no parole. Lie about a car you sold? You not only refund the purchase price, you pay that again plus expenses involved in the recovery.

    7. Or, the other way around. Make all prosecutes come out of a pool of public defenders.

    8. I think robc’s approach would solve a lot of problems.

      I’m less worried about the attorneys laying down when they are on one side but not the other. First, attorneys are crazy competitive and hate to lose. Second, its not hard to build incentives into the system to minimize that.

      Hell, its worth a try, and I think it might do a lot to break up the Cop-Industrial Complex.

      1. The problem is that at the moment the incentives are totally ass backwards. Most lawyers going into government work aren’t doing it for the money, but as a stepping stone to public office.

        So a successful prosecutor can run for judge or congress as someone who is tough on crime, and a successful public defender can run as the guy who got succesfully defended some bad guys. It seems like there’s a rather perverse reward system going on there.

  4. Feminist’s house vandalized by feminists. Circle of LOL ensues.

    The Bettie Page house, a decadelong fixture for Seattle commuters on I-5, was splattered with gray paint by a group that signed a note as only “some feminists.”

    The gray paint splattered on the side of Jessica Baxter’s house already had dried by the time she learned of the vandalism to her family’s mural of Bettie Page.

    She had seen the same paint on her car days earlier but didn’t think much of it. It wasn’t until her husband, Chris Brugos, saw it on their home in Seattle from the bus last Friday that they discovered paint over the 10-year-old mural of the 1950s pinup model Bettie Page, visible to drivers on I-5 as they approach the Ravenna neighborhood.

    The couple saw Page as in charge of her own image, and as Baxter put it, a pioneer “well ahead of her time.”

    To restore the mural, Baxter said they plan to strip the entire side of the house of its siding, replace it and go through the process of projecting the image onto the side of the house at night and hiring a friend to paint over the projection.

    1. Ms. Baxter – you have been officially exiled from Scotland.

    2. People are debating in the comments whether the correct policy in response to this sort of thing is a “$5000 fine” a la Vancouver, or “lashes with bamboo cane” a la Singapore/Indonesia. Oh, and that these same people should have reserved their hateful vandalism for “gun stores”.

      The only thing anyone can think is, “THIS WHY WE NEED MOAR CONTROLS”

  5. Firstly, no one likes the speed bump, much less the roadblock. That’s constitutional rights.

    Second, law enforcement is an assembly line. The various criminal justice workers, from police to court workers to corrections officials, see those they come in contact with as widgets on a conveyor belt. The more productive on paper they are at their jobs and the less they identify with their product, the easier things go for them.

  6. “My criminal defense colleagues who were never prosecutors themselves often assume that prosecutorial misconduct is rife because prosecution attracts authoritarian personality types. Although it is surely true that some are natural bad actors, my experience showed me that prosecutors are strongly influenced to disregard and minimize rights by the culture that surrounds them.”

    As I read the article, I kept thinking of the Stanford Prison Experiment, where randomly assigned people to play prison guards started abusing people randomly assigned to play inmates. Stanford_prison_experiment

    The view from the top of the totem pole distorts people’s perspectives and creates its own logic. We imagine that if only someone of integrity and principle were at the top, things would be different–but the perspective and logic at the top is always the same. I’m sure that’s why people like Obama end up violating the Fourth Amendment rights of 325 million Americans by way of the NSA, start assassinating Americans without trial, and jump into Libya after campaigning against the Iraq War. Wouldn’t it be great if only electing people of integrity with the right principles were the solution to that problem?

    I’m sure it’s the same with prosecutors . . . judges, city council members, senators, generals, . . .

    Getting the right people isn’t the answer. The solution is to limit their power.

    1. We imagine that if only someone of integrity and principle were at the top, things would be different–but the perspective and logic at the top is always the same.

      This misperception drives almost everything in public policy.

  7. All this confirms my belief that reform requires a groundup overhaul.

    No government polce, prosecutors, courts, or any other part of the judicial system, to avoid all pro-government bias.

    Only victims (or their guardians, etc) can prosecute. Anyone can hire police, of course.

    All parties to a case mutually hire a court; there are provisions for when they can’t agree.

    Parties to a case create and execute their own warrants, with any assistance they want of course, with the only restrictions being that the warrants must be relevant, minimal, etc; and any warrant executed beyond its description or before appeals have approved it, or on behalf of a losing party, rebound upon the author/executor by the warrant raget repeating that execution upon them. In other words, if you are rude, if you make a mess of someone’s house or car during a search, if you look into their bank records or personal diaries … they get to do the same to you.

    Losers pay everything. If they refuse or can’t, then they cannot file any complaints for anything less than the amount they owe. This means, in effect, winners can steal from them as necessary and the losers can’t complain.

    1. Only victims (or their guardians, etc) can prosecute

      What about the edge case of people killing indigents?

      1. Or rather someone with no social support group to push when their dead.

        Or when an unidentified body turns up.

      2. Since loser pays, I think quite a few charities and lawyers would volunteer to prosecute such cases.

        I should have mentioned that I think the only proper punishment is restitution; that custodial sentencing is atrociously inept and inappropriate. On the other hand, locking up a threat is entirely appropriate, and a random murderer, a hit man, a vicious street thug — all those are such threats that locking them up seems appropriate. Whereas locking up an embezzler, is pointless, since ex-embezzlers are quite unlikely to ever be hired again for any job which would enable more embezzling.

        One of the proper duties of a legislature is to establish restitution policies for crimes like murder or assault, where mere medical costs, lost wages, etc aren’t enough. Whether murder is listed as worth annual pay times life expectancy or anything else, very few people are going to be deemed worthless other than psychopaths on the run, and that restitution is what would attract voluntary prosecutors, who could assume the role of guardian for strangers who can’t handle their own affairs (dead, in a coma, senile).

        And then there are some people so worthless that no one would care. In effect it’s the same now, where police don’t put much effort into finding who murdered a wino or druggie or small time crook.

        1. One of the many annoying things about proggies is the lip service they pay to “justice”. They moan and wring their hands and gnash their teeth at the thought of low pay, high rent, unfair prosecution, yet they don’t give a rat’s ass about the poor, the homeless, or prisoners in for victimless crimes. They would never ever admit that homeless winos are less than human, they would never ever admit that police don’t investigate such crimes as thoroughly as famous, rich, or powerful victims, and they will never ever do anything for homeless murder or robbery victims because that would be hard work and admitting that such people never get a fair shake and the system has failed them.

          My scheme at least gets that out in the open, and I have far more faith in humanity than proggies. I have zero doubt that even in cases where policy restitution was abysmally low, there would be charities and lawyers coming to their aid, even post-mortem.

          One of the many problems with an over-weening coercive State is how much it discourages people from volunteering. When so much of your paycheck disappears in the name of the poor, why should you give over and above on your own?

        2. Most criminals don’t have any money. So loser pays wouldn’t make any difference in most cases.

          1. I think it would make more difference than you think. Criminals do have property of some sort — cars at least, TVs, cell phones. Even if they aren’t worth a lot, they are still precious to the crook. If the law allows you to steal from the loser to collect restitution, crooks will put a lot more effort into paying it off, borrowing from family and friends at least. Of course some will try to steal to collect the restitution, but I don’t think most would.

            Plus, this debt doesn’t go away. Some fellow crook down on his luck might well see him buy a new TV to replace the one just taken by his winner, and steal it for the bounty. It hangs over the loser forever, making any accumulation of possessions problematic. All that needs happen is have bounty hunters check up on these bums once a year; show up unannounced, see a beat up car out front, TV and X-box inside, take them. What winner wouldn’t be happy splitting, say, $2000 in stolen goods 50-50? And restitution has to include recovery costs or it isn’t full restitution.

            Or anther way to look at it — any crook who never accumulates any possessions is too lousy a crook to ever be caught and convicted. Any crook who does accumulate possessions makes himself a target for bounty hunters looking to make an easy bit of weekend cash.

            1. The law already allows the cops to take virtually everything you own in the form of forfeiture laws. If the person had the kind of impulse control and forethought to be deterred by losing all of their stuff, they likely wouldn’t be a criminal in the first place.

              A system like the one you describe would end up working just like the tort system works. Lawyers work on contingency and the only people who get their cases heard are people who can show enough damages to justify the cost of trying the case. That is fine for torts. It would be a disaster for crimes. If I am a poor old person who doesn’t have much income or assets, a crime committed against me just isn’t going to be worth anyone prosecuting. Your system would basically be open season on the old and the less fortunate.

              1. What dream world are you living in? There are a lot of jurisdictions already where cops won’t come out to your house for burglary — file it online and still nothing happens. Even if they do investigate some, they prioritize, so granny getting her TV or even car stolen will never get even the most cursory investigation. File and forget is their motto.

                How is my system worse? It at least lets people do their own legal investigation and prosecution. There are innumerable reports of people tracking their stolen phones or laptops right to an exact apartment, yet cops do nothing.

                1. Sure that happens. But it doesn’t happen all of the time. And it certainly doesn’t happen with regard to violent crimes. Under your system, whether a case is investigated and prosecuted would entirely be based on the money involved and never the seriousness of the crime.

                  1. Violent crimes, are you kidding me? Some drunks out on a Friday night shot up my car, an empty vacation house nearby, and a boat in a driveway — and wouldn’t come out and collect evidence even for posterity. I filed an online report with pictures and have never heard back.

                    People on the wrong side of the tracks are murdered and the investigation is so cursory you’d think they were trying to get out of picking up litter.

                    People get mugged, carjacked, burgled, and nothing happens unless they have caught a guy for some other reason.

                    All cops care about is asset forfeiture raids where the pickings are easy and there is no investigation required.

                    I don’t know where you live, but it’s not in any reality I ever heard of.

                    Cops don’t give a shit about the hard work that exists only in TV shows. They want their pensions, the power to shove people around, and if some dog gets in their way, they shoot and don’t even care if they miss.

                  2. Some jurisdictions have unprocessed rape kits going back years. Yet get too many parking tickets and they rack up the fees and fines and interest enough for SWAT raids so they can impound your car, add on storage costs, and eventually sell it for a fortune.

                    Drug stings are fine, for the corner dealers. The big guys surrounded by body guards and insulated from direct criminal activity by patsies and goons? Fugeddaboutit!

                    My system would at least give people a chance to fight for themselves, legally. Hell, put my system in place parallel to the current system, and people would flock to it in droves, leave the current system’s employees playing checkers all day.

                    Grow up John. You sure do talk purty sometimes, but you don’t know squat about reality.

                    1. Out where I live, in rural Appalachia, law enforcement’s chief activity seems to be locking up poor, pathetic meth/oxy/heroin dealers. I’d much rather just leave the sad sacks alone to thrive or die as Darwin decrees.

                      It’s a truism that the biggest danger of drug use is getting caught.

                      Yeah, sure, people OD — my daughter is a surg tech. who until recently worked in an area ravaged by drug abuse. Her hospital emergency room dealt with the same indigents with the same ODs again and again. Her case load was filled with people who took such poor care of themselves that all the CABG and ‘plastys and even amputations were just a futile rearguard action against completely self-inflicted (through drugs, smoking and obesity) damage.

                      Let nature take its course. Who set us up on our thrones to dictate to others how they should live or die?

  8. I was reading about Preet Bahara’s response to Ulbricht’s appeal for a new trial last week. It seemed obvious to me that the reason they didn’t use the evidence gathered by two of the investigators into Silk Road was because they knew those officers were corrupt and had attempted to extort Ulbricht. Using their testimony and evidence at trial 1) could cast reasonable doubt on the entire investigation in the minds of jurors and 2) would be good reason to overturn Ulbricht’s conviction if it were included in trial.

    In other words, Preet Bahara’s nauseating response to Ulbricht’s appeal reads like a textbook example of what Ken White is writing about in this piece.…..-doj-says/

    I still have two questions I’d love for someone to ask Preet Bahara under oath:

    1) Did you know there was an ongoing corruption investigation into federal agents working the Ulbricht case before or during the trial?

    2) If you didn’t know there was an ongoing corruption investigation of agents working the Ulbricht case, then why didn’t you use their evidence and testimony at trial?

    1. It doesn’t matter if he knew. Because he is the government’s lawyer, he is presumed to have known and held responsible for not knowing. The investigation of those officers was material to the case and should have been turned over to the defense. You don’t get to avoid that by just not calling them.

      Bahara is a corrupt lying piece of shit.

      1. If you read the Ars Technica piece, Preet Bahara is saying that Ulbricht shouldn’t get a new trial specifically because the investigators who plea bargained to corruption charges (and are now in prison) weren’t called to testify.

        Somehow withholding evidence that might cause the jury to doubt the reliability of the government’s witnesses becomes the very reason why Ulbricht shouldn’t get a new trial?

        It’s nauseating.

        1. In theory, he is right. The fact that those two guys were corrupt doesn’t necessarily mean that Ulbricht is innocent or that the evidence against him was unreliable. It is possible that the two corrupt cops were part of an otherwise reliable investigation that produced a solid case against Ulbricht.

          What Bahara fails to mention, however, is that determining that fact is why we have juries. The jury could have very easily heard about the corruption and concluded that it didn’t taint the reliability of the government’s evidence enough to create a reasonable doubt. They of course could also have concluded otherwise.

          The question someone needs to ask Bahara is “if it didn’t matter, why did you withhold the information from the defense?” If it was the case that this was just two dirtbags involved in an otherwise reliable investigation that produced reliable evidence of Ulbrich’s guilt beyond a reasonable doubt, the government should not have had any worries about that fact coming out at trial. The only reason they were worried is because it did in fact reflect on the reliability of the case as a whole.

  9. As much as I normally dislike Dopehat, this is a pretty spot on article, although he is way too easy on prosecutors. Prosecutors as a general rule don’t live in fear of guilty suspects going free and committing crimes. The job is too busy for that much contemplation about every case. What is mostly going on is careerism. No prosecutor ever got promoted for doing the right thing. In fact, prosecutors who try and do the right thing are generally mercilessly punished. Any DA who stopped believing the cops’ lines of bullshit explaining why they didn’t need a warrant or why this guy for some mysterious reason consented to a search would see their career end very quickly.

    The other thing that Dopehat fails to mention is that most people in the system really are guilty. That is in one sense a good thing I suppose but that fact is what helps create the toxic environment that the article portrays. Since 90% of the cases involve guilty defendants, prosecutors start to think that lying is no big deal. All but the most depraved will hesitate to lie when doing so means convicting an innocent person. But most people, prosecutors or no, will be willing to lie if they think it will convict a guilty person and help their careers to boot.

    1. You know, referring to Popehat by the insulting pet name “Dopehat” really helps your argument. It’s like when people write about “Micro$oft”; you can really tell they’ve thought their objections through!

    2. When Preet Bharara was comng after Reason (and by extension, me), Ken White was one of the first to speak out and the most adamant in opposition to Bharara’s actions. He and I corresponded regarding the subpoena and his support was very welcome at a time when I was seriously wondering if at any moment I might have federal agents showing up at my front door. I disagree with White about some things, but he’s a man of integrity and doesn’t deserve the namecalling.

      1. My understanding is that John got out of hand over at Popehat, and his ingenious comments were taken down.

        I think he’s holding a grudge.

  10. When you live in a system where people are guilty and often guilty of pretty horrible things, it is very easy to convince yourself all defendants are guilty. And once you believe that, it is a very quick step to concluding lying and unethical behavior is justified. That of course is completely immoral and wrong. But that is human nature and how these things work.

    The real failure in the system is not so much DA’s but judges. We are supposed to have judges who are skeptical and enforce standards of justice such that prosecutors don’t fall into the trap I just described. Sadly, we don’t have that. Instead, we mostly have judges who are former prosecutors and end up further enforcing that culture.

  11. I’m just happy an article like this drives some actual intelligent debate in the comments. The kidding and usual BS is fun to read, but it’s good to see you guys were affected enough by the article to break into semi serious debate. I think it’s a good thought provoking article, thanks to Reason for posying it.

    1. posting it…fat fingers?

  12. The American justice system is a victim of its own success – having solved most serious crimes and cracked all the biggest conspiracies and rackets, they are now forced to create new crimes and exaggerate existing ones. One way to do this is to increase government benefits and then pursue the inevitable cheats (e.g. Medicare, home loans, etc). Another way is to start a new war, such as the drug war and war on terror and war on sex trafficking, and try to tie them together in a self-perpetuating cycle. Underneath every story is guy down on his luck and frustrated with his lot – like the ‘bank robber’ in the article. It’s pretty sad really. Our principles have for the most part been thoroughly vindicated and we must export them to other countries instead of starting up new wars for sexploitation and cheap labor.

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  14. That’s great, but now she’s a defense attorney. If she were to go back to being a prosecutor, she could train others with her experience and use her skills as they ought to be used.

  15. Griffith was…the police officer we happily believed we had.

    But Don Knotts was the one we actually got.

    1. I think he’d be an improvement over what we have IRL actually…

  16. For decades I’ve been sworn as an officer of the court nearly every week. This is a charge upon me to uphold the rights of individuals–nearly all of them foreigners. This was clear from the outset because I had studied ethics and knew what rights were (and why) before ever setting foot in the court system. My impression from working with lawyers and prosecutors is that law schools teach nothing resembling ethics. They apparently go to great lengths to obfuscate the nature of individual rights and evade any standard of value that would give rational grounds for individuals having rights. Not surprisingly, I’ve never yet seen a libertarian lawyer. I did see a lawyer sentenced to a prison term for hemp, so have not given up hope of someday seeing one when he makes parole–assuming he learns in prison what law school failed to teach.

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  18. The real solution to this problem is to stop prosecuting people when there’s no victim. In crimes with a victim (you know, real crimes), the victim should be the one to determine the sentence that the prosecutor attempts to achieve and determine if something is plead out or not.

    I’d venture a guess that 75%+ of the time prosecutors are in court/cutting deals the “victim” is the state (drug offenses mostly). The fact that a prosecutor’s “mood” can mean the difference between probation and 15 years in prison is simply not justifiable. If you are convicted of a crime, you should have a standardized sentencing guideline that’s followed, not a bunch of guys getting together and putting “deals” together. Of course, first you need to come to the conclusion that MANY of the things we go to court for today (most, in fact) aren’t things that most of us see as crimes. If you say “90 days in jail, no discussions, no negotiation” for a marijuana offence, people will go ballistic. Those laws are only for poor people, not for “Johnny Middle Class Kid” who got caught with a joint. Justice is supposed to be blind, the current system makes it anything but.

  19. One of the scarier aspects of this, not mentioned in the article, is that the vast majority of judges primary legal background is as a prosecutor. Thus, the bias of prosecutors in general are endemic among judges.

    Short of eliminating government prosecutors as a profession, the best solution would probably be to dis-empower judges and transfer that power to the juries, as well as prohibiting either from restricting the arguments that the defendants may use.

  20. When prosecutors, or police, lie in court, they should immediately be punished with the maximum sentence that the defendant is facing. Or just hang them, I don’t really care which.

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  27. For 20 yrs my job was to escort high-priority defendants through all their pre-trial, trial, sentencings, appeals, and (frequently) re-trials. This was done so that officers would be completely familiar with the details of a case, especially family and friends of both defendants and victims, or volatile witnesses who might appear, etc.

    It is true that 90% of all defendants are guilty as sin. Gradually I became aware that the ubiquitous plea bargain system was forcing reckless over-charging by prosecutors. Worse yet, police investigations often would be noticeably shoddy and superficial, because agencies anticipated cases would be settled by forced confessions (which is what a plea bargain is.)

    This cheap and easy solution for reducing criminal justice expense has sabotaged a lot of high tech forensic investment I would have loved to see in many cases.

    I also noticed is that guilty-as-hell defendants were often getting sweetheart deals. The more calculating and hardened the criminal, the better the deal, particularly if they were willing to perjure themselves and testify against someone the prosecutor wanted to make into an accomplice.

    Lately, I’ve ended up in fights when someone claims “The USA has the best criminal justice system in the world.” We have the most expensive (by far) public schol system in the world as well, but neither system should we brag about, or be proud of.

    Why not? Democracy tends to let idiots run the most entrenched bureaucracies.

  28. I’m not a legal expert, but when I read “Prosecutors Are Duty-Bound to Argue That Rights Don’t Matter” it makes me wonder the following:

    Given that in the United States the justice system currently puts blacks and minorities in prison in disproportionate rates, given that the laws are racially biased (crack-cocaine vs cocaine*), that the US prison system systematically abuses prisoner rights including but limited to torture **, the use of Penal Labor in the US…

    At what point can the principals behind such a corrupt system claim that they are just ‘doing their job’?

    At the Nuremberg humanity seemed to agreed:
    “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

    If a US prosecutor puts thousands of minorities in jail because of ‘the law’ knowing full well they will be exploited in a profit driven prison system that will use bonded labor and torture…. isn’t that a breach of international law and human rights and therefore the prosecutors legal duty is to avoid the carrying out of such acts to the best of their ability?

    * I know the reasons were unintentional, but the end result was biased and it has not been fixed. How long can a country continue committing the same error and not fixing it?
    ** There have been several Amnesty international reports on the common use of prolonged solitary confinement

    1. Here’s the thing man… Blacks and Hispanics commit crimes at greater rates than other groups. Therefore in a just system, they should be arrested more. End of story.

      With SOME stuff I can buy that blacks get arrested more than whites “just because,” like say with small amounts of weed or something. There are reasons for this to some degree. It doesn’t make any sense to put MORE police in the nice, crime free, usually white/Asian part of town right? So they have more cops where they are needed, where the crime is, which tends to be the black/Hispanic part of town… So more cops around = more arrests for small stuff. It’s kinda shitty, but almost unavoidable, because doing LESS policing in the bad part of down is a horrible idea.

      However blacks also commit around 50% of murders every year. Quite a feat for 13% of the population! Anybody who thinks the police are just randomly saying “Oh, it must be some black guy that did this! Let’s find a brotha and charge him with this murder at random!” is full of shit. They’re committing the murders. And I imagine for most other crimes they’re really committing them too. In other words it’s a dysfunctional community. There may be reasons for this, but that’s irrelevant when talking about prosecuting people for crimes actually committed.

      1. If it was purely because of evil white racists, why aren’t there oodles of Chinese and Indian people in prison? They commit crimes at even lower rates than whites, that’s why. Other groups don’t. So unless you think we should allow some criminals that are caught to be let go just for the feelz because they’re black or whatever, this can and should continue until their crime rates are the same as other less criminal ethnic groups. If black people want to be sent to prison less, commit fewer crimes like the Chinese and they will get their wish!

        We need plenty of criminal justice reform, like getting rid of victimless crimes, but the race card has almost nothing to do with any of it. So lay off man.

  29. Interesting article. Our justice system is surely a giant mess. There are probably 1,000 small things we can do to help, but the best thing is to simply get rid of nonsense laws. If there is no law to prosecute somebody under, bad prosecutors won’t be as big of a problem!

    1. “Our justice system…”

      It is not a justice system. It may be a legal system, but it certainly is no justice system.

      1. Haha, fair enough!

  30. “Dick Wolf’s Law & Order series”

    Over the past few decades, Dick Wolf has done more than just about anyone else to dumb down the population with his dreadful, insidiously bad cop shows. That the story lines are breathtakingly boring should be enough for anyone with a tiny brain to avoid his shows. That he sets the standard for cop-sucking and badge-licking though is proof he pays enormous attention to the “advisers” he hires from various cop departments.

    Efrem Zimbalist Jr certainly earned his place in awful, innaccurate tv shows with “The FBI”. It was legend that Hoover himself saw the scripts before production started. Jesus H Christ…if that doesn’t put the fear of God in you, what the Hell would?

    Today’s number one cop show piece of shit is Blue Bloods: Doing all they can to keep the sheeple supple.

    1. I haven’t watched much since Hillstreet Blues. Lately I am addicted to live PD–where you ride along real time with the officers in maybe 6 or 7 different cities nationally and the editors switch you to wherever something even remotely interesting is going on.

      Mostly it is: boring, boring, boring, wow that is stupid, STUPID, STUPID, STUPID, boring, boring, boring, wow! I hope no one is seriously injured.

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